Hereinafter “R&H Defendants’ Motion to Dismiss CAC.” 1

Hereinafter “Liberty Life Defendants’ Motion to Dismiss CAC.” 2

Page 1 of 19

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARK JACKSON : CIVIL ACTION

:

 v. :

 :

ROHM & HAAS COMPANY, et al. : NO. 05-4988

REPORT AND RECOMMENDATION

M. FAITH ANGELL December 16, 2008

United States Magistrate Judge

The dispute between the parties spans over ten years and has been the subject of

numerous lawsuits in both federal and state court. As the parties, and Judge Pollak, are

intimately familiar with the course of the litigation, I will not repeat it here, except as necessary

to explain my analysis. Presently before me are the Rohm & Haas Defendants’ and the Liberty

Life Defendants’ motions to dismiss Plaintiff’s Consolidated Amended Complaint. The

Defendants argue that the Consolidated Amended Complaint [“CAC”] is dominated by frivolous

claims and theories, and that Plaintiff’s continued refusal to comply with Court Orders and to file

a proper complaint warrants dismissal of the CAC with prejudice. Rohm & Haas Defendants’

Motion to Dismiss the Consolidated Amended Complaint [Docket Entry No. 170] at pp. 7, 25. 1

See Liberty Life Defendant’s Motion to Dismiss Consolidated Amended Complaint [Docket Entry

No. 171] at 2 (“[T]he [CAC] is an amalgam of all the others - incorporating virtually every

2

scurrilous and incendiary allegation from pleadings past. Plaintiff’s complaint should be

dismissed in its entirety and with prejudice because it fails to offer a short and plain statement

demonstrating Plaintiff’s entitlement to relief. Plaintiff has disregarded the pleading mandates of

the Federal Rules, despite warnings from the Court.”)

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 1 of 19
 Jackson v. Rohm & Haas Company, et al. [Jackson I], CA No. 03-5299; Jackson v. 3

Rohm & Haas Company, et al. [Jackson II], CA No. 05-4988; and Jackson v. Rohm & Haas

Company, et al. [Jackson III], CA No. 06-3682.

The Consolidated Amended Complaint was filed at Docket Entry No. 168, in 4

Civil Action No. 05-4988 [Jackson II].

Page 2 of 19

I. The CAC Is Clearly An Improper Pleading.

I have reviewed the entire record in all three federal Jackson matters , and conclude that 3

the Consolidated Amended Complaint filed in the above-captioned matter is clearly improper.4

In no way does the CAC comply with Rule 8 of the Federal Rules of Civil Procedure, which

requires “a short and plain statement” of the grounds for the court’s jurisdiction and of the claims

showing that the plaintiff is entitled to relief. See Fed.R.Civ.Pro. 8(a); In Re: Westinghouse

Securities Litigation, 90 F.3d 696, 702 (3d Cir. 1996)(“Taken together, Rules 8(a) and 8(e)(1)

underscore the emphasis placed on clarity and brevity by the federal pleading rules.”). The CAC

is one hundred and fifty-two pages long, presents twenty-five claims against fifty-one defendants

(twenty-five of which are “John Does”), and includes ninety-three footnotes. It does not identify

what each of the named Defendants is alleged to have done to warrant the multiple claims against

them and, thus, lacks factual foundation. In addition, the counts are convoluted and are riddled

with inflammatory and unwarranted conclusory allegations, and, therefore, is in violation of my

May 21, 2008 Order directing Plaintiff to limit the consolidated amended complaint to claims for

which he has a good faith basis. 

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 2 of 19
See Plaintiff’s Response to Liberty Life Defendants’ Motion to Dismiss CAC at 5

p. 34 (noting that the Defendants did not made argument on each claim “as they had done in each

of their past motions”).

Page 3 of 19

Plaintiff argues that Defendants are required to go through the CAC, “either a fact at a

time, or a claim at a time,” and show the Court where the complaint either goes against a current

order or legal standard. See N.T. 12/5/08 at p. 24. See also Plaintiff’s Response to the R&H

Defendants’ Motion to Dismiss CAC [Docket Entry No. 173] at p. 2 (arguing that the basis for

the R&H Defendants’ motion to dismiss CAC is “unclear,” where “Defendants have made no

argument with respect to most of Plaintiff’s claims, and instead devote much of their effort to the

proposition that the Complaint should be dismissed as a sanction for failure to adhere to Court

Rules and/or prior Court Orders.”); and Plaintiff’s Response to Liberty Life Defendants’ Motion

to Dismiss CAC [Docket Entry No. 175] at p. 31 (arguing that because the Liberty Life

Defendants made no argument with respect to certain claims, the claims “are to be treated as

uncontested”). I disagree. The CAC is manifestly improper and this is Plaintiff’s tenth

complaint in the federal actions (the first nine of which Defendants have responded to claim by

claim). I see no reason to require Defendants to address each and every fact and claim. 5

Nor is the Court inclined to do so, given the facts and circumstances of this litigation. I

will, however, identify some glaring examples of improper claims/allegations in support of my

conclusion that the CAC is an improper pleading.

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 3 of 19
In the March 9, 2006 Opinion, Judge Pollak granted Defendants’ motion for Rule 6

11 sanctions. He determined that the original complaint in Jackson II violated Rule 11(b)(2)

because it included frivolous claims that the R&H Defendants perpetrated a fraud on the court by

offering falsified evidence [the Warrick notes] in support of its defense of Jackson I.

In the July 7, 2006 Opinion, Judge Pollak denied Plaintiff’s motion for leave to 7

file a second amended complaint without prejudice. Judge Pollak ruled that Plaintiff could file a

second amended complaint to present claims based on his alleged termination by R&H. 

However, the proposed second amended complaint continued to assert elements from the original

complaint [claims of obstruction of justice by submitting allegedly false evidence from the state

court action] that Judge Pollak had already concluded were frivolous. 

The original complaint in Jackson III included factual allegations that “[t]he 8

Jackson I defendants knew or should have known that the [Warrick] documents were fraudulent

and that the testimony with respect to the documents had been perjured.” September 5, 2007

Opinion in Jackson III at p. 4 (quoting Plaintiff’s Original Complaint). Judge Pollak noted that

these allegations “c[a]me close” to raising issues he had previously adjudicated frivolous and

advised Plaintiff that “had [he] attempted to base a cause of action on purported facts such as

that, he would have run afoul of [the] July 7, 2006 Order as well as Rule 11.” Id.

Page 4 of 19

A. The CAC Includes Claims Related To The Warrick Notes That The Court Has

Consistently Ruled Are Frivolous.

In Jackson I, Plaintiff first attempted to bring a claim under civil RICO based on

allegations that the R&H Defendants and their counsel altered/manufactured the Warrick notes

and offered perjured testimony related to these notes in a scheme to defraud the state court. June

30, 2005 Opinion in Jackson I [Docket Entry No. 52] at pp. 7-8. Judge Pollak, in a June 30,

2005 Opinion, granted Defendants’ motion to dismiss, concluding that Plaintiff lacked standing

under RICO because the alleged fraudulent conduct was entirely irrelevant to Plaintiff’s alleged

injury (loss of a jury verdict in state court). Id. at pp. 10-13.

Each time Plaintiff has attempted to resurrect the Warrick note allegations in Jackson II

and III, Judge Pollak has rejected these claims as frivolous. See, e.g., March 9, 2006 Opinion in

Jackson II [Docket Entry No.47] at pp. 10-11 ; July 7, 2006 Opinion in Jackson II [Docket Entry 6

No. 90] at pp. 2-3 ; and September 5, 2007 Opinion in Jackson III [Docket Entry No. 47] at p. 4. 7 8

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 4 of 19
See also CAC at p. 24 ¶104, which states “The actions of the R&H Defendants 9

and Liberty Life were on behalf of themselves, as well as the Jackson I Defendants, who stood to

gain a substantial benefit in the event that any of the actions described herein resulted in an

advantage to them in the Jackson I litigation.”

Page 5 of 19

In a recent January 10, 2008 Opinion in Jackson II, Judge Pollak wrote:

“This [Warrick notes] issue has been litigated multiple times, yet Plaintiff

apparently still fails to understand that the authenticity of the notes was irrelevant

to the disposition of Jackson I because that case was dismissed for lack of RICO

standing, an issue that has nothing to do with whether the interview notes were or

were not genuine. Therefore, as explained in this court’s [March 9, 2006]

sanctions order, Plaintiff’s contention in this case that Defendants obtained a

favorable result in Jackson I by relying on those interview notes is frivolous, as

the notes had nothing to do with this Court’s Jackson I decision. [ . . . ] That

Defendants now claim that the notes are authentic - in the context of claims that

make the authenticity of the notes relevant - does not constitute any inconsistency

on Defendants’ part.”

January 10, 2008 Opinion in Jackson II [Docket Entry No. 152] at pp. 3-4. 

In the CAC, Plaintiff reasserts and expands his allegations regarding the Warrick

notes. As part of his RICO obstruction of justice claims, Plaintiff asserts that Defendants

knowingly used manufactured/altered documents and perjured testimony, have withheld a “third

version” of the Warrick notes “to develop the record that served as the basis for their defenses in

the state and subsequent Federal cases, including Defendants’ sweeping effort to establish

preclusion as a bar to those cases,” and have affirmatively misrepresented in their answers to the

various Jackson complaints that the Warrick evidence is legitimate and authentic. CAC [Docket

Entry No. 168] at pp. 97-98. As a result of the Defendants’ “pattern of racketeering,” Plaintiff

alleges that he was “legally injured within the meaning of RICO,” and his injuries include, inter

alia, “interference with the prosecution of Plaintiff’s various claims.” Id. at pp. 100, 101. By

basing his RICO obstruction of justice claims on allegations related to the Warrick notes and 

interference with his state and federal cases, Plaintiff has “run afoul” of Judge Pollak’s prior

rulings.9

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 5 of 19
See CAC at p. 5 ¶ 27. 10

See CAC at pp. 102, 103, 104, 105, 106, 107, 108, 115, 117, 131, 132, 148, 150, 11

151, and 152.

Page 6 of 19

Plaintiff argues that “all of the obstruction [of justice] counts are supported by facts

subsequent to [Judge Pollak’s May 9, 2006 opinion] [. . . ] [a]nd then the prior facts then become

part of the pattern.” N.T. 12/5/08 at pp. 25-26. In a September 5, 2007 Opinion in Jackson III,

Judge Pollak rejected an attempt by Plaintiff to append predicate acts alleged in Jackson I and

Jackson II to the alleged retaliation acts in Jackson III to meet the closed-end continuity

requirement for a pattern of racketeering activity. September 5, 2007 Opinion in Jackson III

[Docket Entry No. 48] at pp. 10-11. Judge Pollak held that “Plaintiff cannot bootstrap claims

from his prior lawsuits to satisfy the continuity requirement in the present action.” Id. at p. 11. 

Similarly, Plaintiff cannot bootstrap claims already adjudicated frivolous, namely 

that the Defendants’ alleged conduct with respect to the Warrick notes have interfered with his

prosecution of claims in the state court and in Jackson I, to new allegations in the CAC.

B. The CAC Fails to Identify What Each Defendant Is Alleged To Have Done 

To Warrant The Claims Against Them.

In the CAC, named Defendants include individuals and entities who/which were

previously named in earlier iterations of Plaintiff’s complaint and then dropped, for example,

Kelly G. Huller, Esq. Ms. Huller is identified in an introductory paragraph of the CAC , and 10

never mentioned again in the body of the CAC, except in the “Wherefore” paragraph in all of the 

RICO and most of the state law counts. At oral argument on the motions to dismiss, Plaintiff’s 11

counsel argued: 

“As far as Kelly Huller is concerned, I think I have heard enough on that

as well, too. Kelly Huller is in this case because she is represented by HARKINS

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 6 of 19
In his written response to the R&H Defendants’s motion to dismiss, Plaintiff 12

argues that “it must be remembered that the acts and omissions of Harkins Cunningham were on

behalf of all of its clients,” “including Ms. Huller.” Plaintiff’s Response to the R&H Defendants’

Motion to Dismiss CAC at pp. 17 n. 19, 34 n. 28. 

Page 7 of 19

CUNNINGHAM. Everyone who is represented by HARKINS CUNNINGHAM

is bound by their actions in this case, that has been thoroughly briefed.”

N.T. 12/5/08 at pp. 24-25. There is no good faith basis for reinstating Defendants based on 12

Plaintiff’s conclusory statement that all prior clients are bound by the allegations that Plaintiff is

asserting against HARKINS CUNNINGHAM.

A similar argument is made with respect to the reinstatement of MORGAN LEWIS &

BOCKIUS LLP as a named defendant. The R&H Defendants have challenged this as improper,

arguing that MORGAN LEWIS’ only alleged involvement was with respect to the Warrick notes 

in the original state court action back in 2001. R&H Defendants’ Motion to Dismiss CAC at pp.

24-25. In his response to the motion to dismiss, Plaintiff explains: 

“Morgan Lewis and Conrad O’Brien are not defendants because of their

conduct in the original state court case. Rather, the CAC is clear that the claims

against the law firm are based upon the actions taken by Harkins Cunningham,

their counsel in the state and federal cases: [ . . . ]

At this late date, the defendant law firms remain unwilling to acknowledge

the years-long pattern of misconduct that has permeated the state and federal

courts, and to take the actions required of them. And, as defendants’ motion

shows, these same lawyers remain completely unrepentant.”

Plaintiff’s Response to the R&H Defendants’ Motion to Dismiss CAC at pp. 33-34. Again, in the

absence of any factual foundation, derivative claims against other law firms based on allegations

against HARKINS CUNNINGHAM are improper.

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 7 of 19
The dates on which Plaintiff alleges he woke up to discover flower petals on his 13

driveway are October 19, 2006, October 31, 2006, and November 14, 2006.

Page 8 of 19

C. The CAC Includes Claims That The Court Has Ruled Are Improper.

In Count XIII of the CAC, brought under ERISA, 29 U.S.C. §1132(a)(3), Plaintiff seeks

monetary damages. CAC at pp. 135, 139. In two prior opinions, Judge Pollak has advised

Plaintiff that monetary damages are not available under this statutory provision and, therefore,

his request is “out of bounds.” September 13, 2007 Opinion in Jackson II [Docket Entry No.

125] at p. 12 and September 5, 2007 Opinion in Jackson III [Docket Entry No. 48] at pp. 26-28.

D. The CAC Includes Claims Related To Alleged Events At Plaintiff’s Residence

That Are Without Foundation.

In the CAC, Plaintiff, as part of his RICO claims, charges all fifty-one named Defendants

with harassment, intimidation, and retaliation occurring at his home. Specifically, Plaintiff

alleges that unknown persons: placed flower petals “of an unknown origin similar to those found

at a funeral or memorial” on his car on the night of September 23, 2006; on three occasions in

2006, neatly placed flower petals on Plaintiff’s driveway at night ; banged loudly on Plaintiff’s 13

door on February 15, 2007 at approximately 3:00 a.m.; parked a van across the street from

Plaintiff’s residence on March 2, 2007; and drove a black SUV on March 7, 2007 which “nearly

struck” Plaintiff as he was crossing the street in front of his residence, and then stopped, with the

driver rolling down his window and stating to Plaintiff: “I’m sorry I almost hit you. You need to

be more careful, especially in other situations when you’re f***ing with the wrong people.” As

to all these events, Plaintiff alleges that he perceived them to be “a threat to his person, safety 

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 8 of 19
Page 9 of 19

and/or property intended to harass, intimidate, oppress, retaliate and dissuade him from

continuation the pending litigation (both the Jackson III case, as well as the Jackson I and II

cases) against the R&H/Liberty Defendants and/or others,” and believed the incidents to be

connected to the litigation as they coincided with various litigation events identified by Plaintiff.

CAC at pp. 34-37 ¶¶ 142, 144, 147, 149 and pp. 40-42 ¶¶ 161, 163, 164.

Defendants argue that the allegations related to events occurring at Plaintiff’s residence

are “inherently incredible” and “totally lacking in foundation.” R&H Defendants’ Motion to

Dismiss CAC at p. 15. See Liberty Life Defendants’ Motion to Dismiss CAC at p. 17 (“Although

Plaintiff alleges that he perceived these incidents to be related to his long-running dispute with

Defendants, he does not allege any facts from which the Court could infer that Liberty Life was

responsible for these bizarre incidents.”).

In response, Plaintiff asserts that the CAC “lays a substantial foundation with respect to

the challenged conduct,” and argues that “[c]redibility determinations are for the fact-finder and

not [the] Court in ruling upon a dismissal motion.” Plaintiff’s Response to the R&H Defendants’

Motion to Dismiss CAC at p. 34. According to Plaintiff, he is not required to identify the

perpetrators. Plaintiff’s Response to Liberty Life Defendants’ Motion to Dismiss CAC at p. 12. 

He explains:

“Whether the challenged conduct is ‘logical,’ or matches an expectation of

how an individual might behave under certain circumstances, is not the standard. 

The question is whether the Complaint contains facts which, when evaluated

under the appropriate standards, state claims upon which relief can be granted. 

Pursuant to the Orders of September 5 and 13, 2007, and April 21, 2008, that

question already has been answered. 

Defendants do not argue that the allegations are insufficient to state a

claim upon which relief can be granted. They cannot. Credibility determinations

are for the fact-finder and not the Court in ruling upon a dismissal motion, and the

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 9 of 19
As the allegations related to incidents at his residence first appeared in the CAC, I 14

reject Plaintiff’s argument that Judge Pollak’s prior orders of September 5, 2007 in Jackson III

and on September 13, 2007 in Jackson II “answered the question” as to whether these allegations

state a claim. 

The April 22, 2008 Order of Judge Pollak dismissed “all outstanding motions

without prejudice,” and directed me to participate in moving the cases forward. April 22, 2008

Opinion in Jackson II [Docket Entry No. 160]. The Order contained no analysis and in no way

can be read, as Plaintiff has argued, as a determination by Judge Pollak that Plaintiff’s proposed

third amended complaint in Jackson II stated claims upon which relief can be granted. See

Plaintiff’s Response to the R&H Defendants’ Motion to Dismiss CAC at pp. 10-11 (“In denying

(in the Opinion of April 21, 2008) Plaintiff’s motion for leave to amend without prejudice, the

district court determined that the Jackson III proposed Third Amended Complaint was not futile,

and stated claims upon which relief can be granted.”). 

Page 10 of 19

CAC lays a substantial foundation with respect to the challenged conduct.

[citation omitted]. While Defendants argue that Plaintiff’s claims are not credible,

it is Defendants who have established a pattern of lying to Plaintiff, various

Courts, and others, no matter the legal or ethical requirements or consequences. 

[ . . . ]

Under the circumstances, it does not strain credulity that Defendants are

behind the events at Plaintiff’s residence, or that they would lie about it. Again,

the CAC lays a substantial foundation connecting the events to the litigation. At

the pleadings stage, Plaintiff is not required to prove his case, but only to state a

claim upon which relief can be granted.”

Id. at pp. 13-15.

The legal standards cited by Plaintiff are correct. However, Plaintiff’s characterization of

the CAC as laying a “substantial foundation” to support this claim is not. Plaintiff may believe

that all fifty-one named Defendants are connected to the alleged incidents “perpetrated” by

unknown persons at his home, but he alleges no factual basis for this belief in the CAC. The

allegations relative to alleged incidents at Plaintiff’s residence are manifestly deficient for

purposes of stating a RICO obstruction of justice claim. 

14

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 10 of 19
At the beginning of the argument, I asked Counsel for the Defendants to tell me

15

under what authority or statute they were asking the Court to apply the Poulis standard. N.T.

12/05/08 at pp. 3-4. As discussed in the text above, Counsel for the R&H Defendants cited

various specific rules and the inherent authority of the Court to manage cases. When asked if he

wished to comment on the Poulis issue, Plaintiff’s Counsel replied: “I think we will just rest on

our submissions other than to say your first question today to Mr. Reed [Counsel for the R&H

Defendants] pertained to Poulis, that was not answered by Mr. Reed. Poulis has six elements. I

don’t remember him answering your inquiry about it.” Id. at pp. 22-23. As noted above, the

R&H Defendants has briefed each of the six Poulis factors and argue that all weigh in favor of

dismissal with prejudice.

Page 11 of 19

II. Dismissal Of The CAC With Prejudice Is Warranted Under A Poulis Analysis.

Defendants have requested that the CAC be dismissed with prejudice. R&H Defendants’

Motion to Dismiss CAC at p. 32; Liberty Life Defendants’ Motion to Dismiss CAC at p. 21. 

Defendants argue that the Court has authority to dismiss the CAC with prejudice under its

inherent power to manage cases before the Court, or in the alternative, under Rule 12(f) and/or

Rule 8. R&H Defendants’ Motion to Dismiss CAC at pp. 6-7, 25-26. See also N. T. 12/4/08 at

pp. 5-10 (R&H Defendants’ Counsel argues: “There are many sources for authority for you to do

what we think you should do, which is to dismiss this action with prejudice,” and cites Rules 8,

41(b), 9(b), 12(b)(6) and 12(f), and the inherent authority of the Court to manage cases before it). 

The R&H Defendants suggest that the Poulis factors apply in this situation, and argue that each

prong of the Poulis test weighs in favor of dismissal of the CAC with prejudice. R&H

Defendants’ Motion to Dismiss CAC at pp. 26-32. 

At oral argument on the Defendants’ motions to dismiss the CAC, Plaintiff’s Counsel

chose to rest on his submissions on the Poulis issue. N.T. 12/5/08 at p. 23. In his written 15

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 11 of 19
The Third Circuit has held that a court should look first to rule-based or statute- 16

based powers before turning to its inherent sanctioning power. Klein v. Stahl GMBH, et al., 185

F.3d 98, 110 (3d Cir. 1999). 

Page 12 of 19

response to Defendants’ Poulis argument, Plaintiff did not address any of the six factors, instead,

he wrote:

“In what can only be considered a ‘fantastic’ argument, Defendants move

for dismissal under Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863,

868 (3d Cir. 1984), where a lawyer was sanctioned for missing deadlines. 

Defendants argue that each of the six Poulis facts [sic] weighs in favor of

dismissal. 

Plaintiff was directed to file the CAC pursuant to the Order of May 21,

2008 consolidating Jackson II and Jackson III. Defendants’ Poulis argument is

utter nonsense. [citations to the R&H Defendants’ brief omitted]”

Plaintiff’s Response to the R&H Defendants’ Motion to Dismiss CAC at pp. 36-37.

 As discussed above, I find that the CAC fails to comply with the basic pleading

requirements of Rule 8 of the Federal Rules of Civil Procedure, and does not comply with prior

orders of the Court in violation of Rule 41(b) of the Federal Rules of Civil Procedure. Given the

lengthy history of this litigation and the present procedural posture, and consistent with the

Court’s inherent power to manage cases before it, I will address whether dismissal of the CAC

with prejudice is warranted under a Poulis analysis. See Briscoe v. Klaus, 538 F.3d 252, 258 (3d

Cir. 2008)(because dismissal with prejudice is a drastic sanction, it is imperative that the District

Court have a full understanding of the surrounding facts and circumstances pertinent to the

Poulis factors before it undertakes its analysis). See also Hernandez v. Palakovich, No. 06-2060,

2008 WL 4299279 at *5 n.7 (3d Cir. September 19, 2008)(the District Court has inherent power

to dismiss a case sua sponte for failure to follow its orders).16

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 12 of 19
Page 13 of 19

The Poulis analysis requires the Court to balance six factors to determine whether

dismissal of a case is warranted: (1) the extent of the party’s personal responsibility; (2) the

prejudice to the adversary caused by the failure to meet scheduling orders and respond to

discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was

willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an

analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Briscoe,

538 F.3d at 258 (3d Cir. 2008). Not all of the factors need weigh against a plaintiff to warrant

dismissal. Hernandez, 2008 WL 4299279 at *4 (3d Cir. September 19, 2008).

In this case, I find that at least five of the six Poulis factors weigh in favor of dismissal of

the CAC with prejudice. First, I find Mr. Jackson personally responsible for the content of the

CAC. After this litigation was returned to me for pretrial management and to “discuss with the

parties how best to move this case forward,” I ordered the parties to be present at a May 20, 2008

hearing. See April 22, 2008 Order in Jackson II [Docket Entry No. 161]. In the April 22, 2008

Order, I stated: “Counsel [ . . . ] are reminded that in filing any motion or pleading, they are

bound by Rule 11 of the Federal Rules of Civil Procedure.” Id. at p. 2.

At the May 20, 2008 hearing, I explained that I had required the parties to be present

“because I really do want to emphasize that this case has a history,” and is a “fairly heavily

litigated matter.” N.T. 5/20/08 at p. 4. I expressed concern for the course of this litigation, and

directed Plaintiff’s Counsel to “prepare a complaint which encompasses all the claims he

believes in good faith he can raise before the Court based on whatever actions he believes the

respondents have exerted against his client.” Id. at pp. 4-5. Plaintiff’s Counsel was advised: (1)

to be concise; (2) that I believed a consolidated amended complaint of over one hundred pages

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 13 of 19
And, presumably, Mr. Jackson was apprised by counsel of the May 21, 2008 17

Order. 

Page 14 of 19

was unrealistic; (3) that he was bound by all rules of court; (4) that all prior rulings by Judge

Pollak would be applied when reviewing the consolidated complaint; and (5) that the

consolidated amended complaint was Plaintiff’s final document; no more amendments would be

permitted. Id. at pp. 8, 9, 11.

The May 20, 2008 hearing was followed by a May 21, 2008 Order permitting Plaintiff to

file a consolidated amended complaint “alleging all claims for which he has a good faith basis.” 

May 21, 2008 Order in Jackson II [Docket Entry No. 163]. Plaintiff was advised that the

consolidated amended complaint “must be concise and must comply with all federal and local

rules,” and that the Court would not permit later amendments to this pleading. Id.

Because Mr. Jackson was present at the May 20, 2008 hearing and heard my concerns

about the way this action was being litigated, was instructed to file a proper consolidated

amended complaint, and was warned that there would be no more amendments, I conclude that

he is personally responsible for the content of the CAC.17

Second, there is no question that Plaintiff’s failure to file a proper complaint during this

drawn-out litigation has prejudiced the Defendants and impeded their ability to prepare a defense. 

The CAC is Plaintiff’s tenth iteration of his claims in this forum. The Defendants have had to

answer all ten complaints, in which the scope of the claims and the number of named Defendants

and co-conspirators have multiplied, and the breadth of the conclusory, baseless allegations has

expanded. Over five years after Plaintiff first filed in this forum, Defendants have yet to see a

proper complaint which gives them fair notice of the claims against them.

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 14 of 19
March 9, 2006 Opinion in Jackson II [Docket Entry No. 47] at pp. 10, 12, 13 n.6, 18

17.

July 7, 2006 Opinion in Jackson II [Docket Entry No. 90] at pp. 2, 3. 19

September 5, 2007Opinion in Jackson III [Docket Entry No. 47] at p. 4. 20

January 10, 2008 Opinion in Jackson II [Docket Entry No. 152] at pp. 4-5 n.1. 21

Page 15 of 19

Third, the history of dilatoriness in this litigation is clear. In several prior opinions, 

Judge Pollak has commented on Plaintiff’s steadfast refusal to file a proper complaint. For

example: (1) in a March 9, 2006 Opinion in Jackson II, Judge Pollak determined that Plaintiff’

original complaint was “dominated by claims which are without warrant and frivolous” and that

Plaintiff’s pleading of all of his federal causes of action was “manifestly deficient;” (2) in a July 18

7, 2006 Opinion in Jackson II, Judge Pollak determined that “the second amended complaint that

[Plaintiff] proposes to file retains substantial elements from his original complaint that I have

already determined, in the opinion filed on March 9, 2006, to be frivolous. [. . . ] For Jackson to

continue to assert, in his proposed second amended complaint, claims and theories that I have

already found frivolous in an exercise in futility, and granting him leave to file his proposed

second amended complaint would, therefore, be inappropriate;” (3) in a September 5, 2007 19

Opinion in Jackson III, Judge Pollak ruled that “while several of Mr. Jackson’s claims [in both

the original complaint and the amended complaint] are tenuous at best, they fall just short of the

threshold for Rule 11 sanctions;” and (4) in a January 10, 2008 Opinion in Jackson II, Judge 20

Pollak noted “Plaintiff’s penchant [ . . .] for making the same argument no matter how often this

Court rejects it,” and the need to deter Plaintiff’s “abusive litigation practices.” 

21

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 15 of 19
Page 16 of 19

In addition, during several Court hearings at which Mr. Jackson was present, I have noted

my concerns about the pleadings in this litigation. For example, at an August 6, 2008 hearing on

Plaintiff’s Motion to Disqualify Counsel for the R&H Defendants, I opined that Mr. Jackson’s

interests were getting lost the course of this litigation. I questioned whether the “multi-faceted

complaints [and] the kind of motions that have resulted,” were benefitting Mr. Jackson “who is

the integral person in this process.” N.T. 8/6/08 [Docket Entry No. 181] at pp. 29-30. The

pattern of continued failure to file a proper complaint spans the life of this case and continues to

this day.

Fourth, Plaintiff’s consistent failure to file a proper complaint, despite repeated directives

from the Court, can only be viewed as willful or in bad faith. As discussed below, Plaintiff’s

Counsel has already been sanctioned under Rule 11 in this case for filing a complaint dominated

by frivolous claims. Since then, Plaintiff has been afforded numerous opportunities to file a

proper complaint, yet he has persisted in raising the same frivolous claims and adding new

baseless allegations with every new proposed complaint. This professionally irresponsible and

inexcusable behavior cannot be tolerated. 

Fifth, I conclude that there are no alternative sanctions to dismissal with prejudice which

will be effective. On March 9, 2006 in Jackson II, Judge Pollak sanctioned Plaintiff’s Counsel in

excess of $80,000.00 for filing a complaint which contained frivolous claims. Since then,

Plaintiff has repeatedly filed new iterations of his claims that resurrect claims previously ruled

frivolous and adding ever expanding baseless allegations. The Court has no assurance that if

permitted to amend his complaint yet again, Plaintiff will limit himself to claims for which he

has a good faith basis.

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 16 of 19
The potential meritoriousness of a plaintiff’s claim alone cannot overcome the 22

weight of the five other factors. See Briscoe, 538 F. 3d at 263 (3d Cir. 2008)(no single Poulis

factor is dispositive).

Page 17 of 19

The sixth Poulis factor, the meritoriousness of the plaintiff’s claims, is the only factor that

does not weigh heavily in favor of dismissal. While the CAC is riddled with inflammatory and

unwarranted conclusory allegations which lack factual foundation, some of Plaintiff’s claims

may have merit and/or have survived prior motions to dismiss. I find, therefore, that the sixth

Poulis factor weighs against dismissal of the CAC with prejudice. 

22

After considering the six Poulis factors in light of Plaintiff’s conduct, I am compelled to

conclude that dismissal of this action with prejudice is appropriate and necessary.

In support of this conclusion, I echo Judge Pollak’s comments in a March 9, 2006

Opinion in Jackson II: 

“[I]n the course of this hard-fought litigation, [Plaintiff’s] Counsel’s zeal

[has] undermined his judgment; very regrettably, his zeal has taken him well

beyond the bounds of negligence and into a realm of relative indifference to the

legal setting in which he [is] crafting his pleadings. It should be added that, 

[ . . . ] this is not the first lawsuit between the parties - in fact, it is the third

lawsuit by the same plaintiff against the same core defendants, and arising out of

the same alleged harms (but with the cadres of accused defendants and the

categories of alleged harms enhanced at each iteration of the charges) [. . .]”

March 9, 2006 Opinion in Jackson II at pp. 18-19. I would add, that since the March 9, 2006

Opinion, Plaintiff’s Counsel’s zeal has gone far beyond relative indifference and has risen to the

level of a willful disrespect for the Court and his opposing counsel. Under a Poulis analysis, in

light of the circumstances of this litigation, I conclude that dismissal of the CAC with prejudice

is warranted. 

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 17 of 19
Page 18 of 19

 

RECOMMENDATION

For the reasons set forth above, it is recommended that the R&H Defendants’ Motion to

Dismiss the Consolidated Amended Complaint [Docket Entry No. 170], and the Liberty Life

Defendants’ Motion to Dismiss the Consolidated Amended Complaint [Docket Entry No. 171]

be GRANTED, and that the Consolidated Amended Complaint in the above-captioned matter be

DISMISSED WITH PREJUDICE. 

BY THE COURT:

 S/M. FAITH ANGELL 

M. FAITH ANGELL

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 18 of 19
Page 19 of 19

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

Robert N.C. Nix Federal Building

900 Market Street, Suite 211

Philadelphia, PA 19107

 Chambers of

 M. FAITH ANGELL P: (215) 597-6079

 United States Magistrate Judge F: (215) 580-2165

FAX / MAIL COVER SHEET

CASE NO. 05-4988 DISTRICT COURT JUDGE: LHP

TODAY’S DATE: December 16, 2008 LAW CLERK’S INITIALS: JJK

VIA FAX: 

NAME FAX NUMBER

1. Richard J. Silverberg, Esq. 215-546-8779

2. John G. Harkins, Jr., Esq./Eleanor Morris Illoway, Esq./

Steven A. Reed, Esq. 215-851-6710

3. Michael J. Miller, Esq./Jason P. Gosselin, Esq./

Grant Edward Nichols, Esq. 215-988-2757

Case 2:05-cv-04988-LP Document 230 Filed 12/17/08 Page 19 of 19